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California Dreaming of the 2nd Amendment

California Dreaming of the 2nd Amendment

by Paul Engel


  • Judge Robert Benitez of the Southern District of California has declared that California’s “assault weapons” ban is unconstitutional.
  • After years of federal judges ignoring the Supreme Court’s Heller opinion, Judge Benitez has based this opinion squarely on its shoulders.
  • What does it mean for the right to keep and bear arms that Judge Benitez based his opinion on Supreme Court “precedent” rather than the Constitution of the United States?

Many in California dream of exercising their right of self-defense protected by the Second Amendment to the Constitution of the United States. That’s because today they are living in a nightmare of laws and regulation designed to prevent otherwise law abiding citizens from exercising the right to keep and bear arms. The recent case Miller v. Bonta, may sound like a blow for freedom in the golden state. The opinion itself, however, is more of a “good news/bad news” situation.

The government of California, like a few other states in the union, appears to have it out for law abiding gun owners. Among the myriad of unconstitutional, and therefore illegal, laws in that state, was a ban on certain firearms based on “features”. These so-called “assault weapons”, a term with a nebulous definition at best, are led by the often vilified AR-15. I’ve even heard it described as the “Assault Rifle-15”, although “AR” is actually an abbreviation for Armalite Rifle, after the company that developed the original design. California’s “assault weapon ban” was challenged by a group of citizens, and was recently heard by Judge Robert Benitez, of the Southern District of California.

While reading a court opinion is not something most of us would do for fun, I recommend anyone interested in the Second Amendment read this one. It is chock full of quotes and statistics that those who support our right to keep and bear arms will find useful.

While judge Benitez did conclude that California’s “assault weapons” ban was unconstitutional, the argument he used for that conclusion leaves it open to being overturned on the simple whim of another court.

The AR-15

Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle, the AR-15 is the kind of versatile gun that lies at the intersection of the kinds of firearms protected under District of Columbia v. Heller,…Yet, the State of California makes it a crime to have an AR- 15 type rifle. Therefore, this Court declares the California statutes to be unconstitutional.

Miller v. Bonta Opinion

I like the analogy of the AR-15 to a Swiss Army knife. Useful, flexible, and with options galore, the AR-15 style rifle, what the court refers to as a modern rifle, is easily customizable to almost any user’s desire. Therefore, is it the AR-15’s versatility that scares so many or is it the rifle’s look? While I’ve been confronted with many who view the AR-15 as an extremely dangerous weapon, as judge Benitez noted, the facts simply do not agree.

This case is not about extraordinary weapons lying at the outer limits of Second Amendment protection. The banned assault weapons” are not bazookas, howitzers, or machineguns. Those arms are dangerous and solely useful for military purposes. Instead, the firearms deemed assault weapons” are fairly ordinary, popular, modern rifles. This is an average case about average guns used in average ways for average purposes.

Miller v. Bonta Opinion

While how dangerous a bazooka, howitzer, or machine-gun may be can be debated, when it comes to the Constitution, it is not how dangerous the weapon is. The only question that should matter is: Is it an ‘arm’?

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

U.S. Constitution, Amendment II

The Second Amendment to the Constitution says the right of the people to keep and bear arms shall not be infringed. It does not say ‘arms except those used exclusively for military purposes’ or ‘those that are deemed too dangerous for civilian use’. So how do we define an arm?

Weapons of offense, or armor for defense and protection of the body.

In law, arms are any thing which a man takes in his hand in anger, to strike or assault another.

Arms: Websters 1828 Dictionary

So anything you can take in hand to strike or assault another is an arm. That includes swords, knives, chemical sprays and, yes, hand guns, shotguns, rifles, and the beloved AR-15.

As a further example of what the court in the case terms “modern rifles” are not extraordinary weapons, judge Benitez points out how common they are.

Modern rifles are popular. Modern rifles are legal to build, buy, and own under federal law and the laws of 45 states. There are probably more modern rifles in circulation than there are Ford F-150 pickup trucks. In 2018, 909,330 Ford F-150s were sold. Twice as many modern rifles were sold the same year. Imagine, every time one passes a new Ford pickup truck, it is a reminder that two new modern rifles have been purchased. That is a lot of modern rifles owned by Americans.

Miller v. Bonta Opinion

While judge Benitez points out that “modern rifles” are legal to build, buy, and own under federal law and the laws of 45 states, I would point out that they are legal to keep and bear under the Constitution of the United States. The statistics that twice as many modern rifles were sold as Ford F-150 pickup trucks in 2018 should answer the question as to their common usage today. With this statistic in mind, I doubt I will ever look at another F-150 pickup truck the same again.

The Media and Activists

One is to be forgiven if one is persuaded by news media and others that the nation is awash with murderous AR-15 assault rifles. The facts, however, do not support this hyperbole, and facts matter. Federal Bureau of Investigation murder statistics do not track assault rifles, but they do show that killing by knife attack is far more common than murder by any kind of rifle. In California, murder by knife occurs seven times more often than murder by rifle. For example, according to F.B.I. statistics for 2019, California saw 252 people murdered with a knife, while 34 people were killed with some type of rifle – not necessarily an AR-15. A Californian is three times more likely to be murdered by an attackers bare hands, fists, or feet, than by his rifle. In 2018, the statistics were even more lopsided as California saw only 24 murders by some type of rifle. The same pattern can be observed across the nation.

Miller v. Bonta Opinion

I guess those who are pushing bans on “assault weapons” across the nation will soon be pushing for knife bans similar to those in New York State and the United Kingdom. How long before people are required to register their bare hands, fists, and feet to prevent manual violence? Will people be required to “micro stamp” their knuckles so law enforcement can read the impression you leave on your opponents face?

While these and other quotes from the opinion are wonderful fodder for the effectiveness of varying “gun-control schemes”, they and judge Benitez miss the point.

The Constitution

The Supreme Court clearly holds that the Second Amendment protects guns commonly owned by law-abiding citizens for lawful purposes. At the same time, the Second Amendment confers an individual right to keep and bear arms . . . that have some reasonable relationship to the preservation or efficiency of a well regulated militia.’”.

Miller v. Bonta Opinion

Starting from the beginning, the Supreme Court does not have the legitimate power to tell the country what the Constitution says or means. That power is not delegated to the United States, much less any of its courts. The Constitution, as written, is the supreme law of the land, every judge in every state is bound to it, and every judge in every court has sworn or affirmed that they will support it.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. 

U.S. Constitution, Article VI, Clauses 2 & 3

As we’ve read, the Constitution guarantees that the people have the right to keep and bear arms. Not, as the Supreme Court has said, “guns commonly owned by law-abiding citizens”, but arms. If it is a weapon for offense or armor for defense, it is an arm and therefore protected under the Second Amendment. If you can take it in hand to strike or assault someone, it is an arm and therefore protected under the Second Amendment. There is no rational reading of the Second Amendment that limits the people’s right to keep and bear arms to those that “have some reasonable relationship to the preservation or efficiency of a well regulated militia.” As judge Benitez quoted:

And although the Supreme Court cautioned that the Second Amendment does not guarantee a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” [Heller] lower courts have often cited this proviso about extreme cases to justify gun laws in average contexts.

Miller v. Bonta Opinion

The Supreme Court may state that the Second Amendment does not guarantee your right to keep and carry “any weapon whatsoever in any manner whatsoever and for whatever purpose“. However, the Constitution of the United States does say almost exactly that. While you cannot keep and bear arms for any purpose, the Second Amendment says that government SHALL NOT INFRINGE on your right to keep and bear arms. That means what ever arm you want, in any manner you want, for any lawful purpose you want. I guess, when it comes to following the Constitution, two out of three isn’t very good at all.


So if there is good news and bad about this decision, what are they?

First, the good news. A federal judge has found that California’s assault weapons ban is unconstitutional. If this opinion is upheld be higher courts, it could be used to find all state and federal assault weapons bans repugnant to the Constitution and therefore void. And for those of you who engage in debates about the usefulness of these so-called assault weapons bans, there is plenty of fodder for you to use.

Now the bad news. Judge Benitez did not so much find that you have an unalienable right to keep and bear arms, but that the Attorney General of California did not provide a sufficiently compelling government interest in restricting that right when it comes to what California calls “assault weapons”.

You might not know it, but this case is about what should be a muscular constitutional right and whether a state can force a gun policy choice that impinges on that right with a 30-year-old failed experiment. It should be an easy question and answer. Government is not free to impose its own new policy choices on American citizens where Constitutional rights are concerned. As Heller explains, the Second Amendment takes certain policy choices and removes them beyond the realm of permissible state action. California may certainly conceive of a policy that a modern rifle is dangerous in the hands of a criminal, and that therefore it is good public policy to keep modern rifles out of the hands of every citizen. The Second Amendment stands as a shield from government imposition of that policy.

Miller v. Bonta Opinion

While judge Benitez claims that the Second Amendment is a shield from government imposition of keeping modern rifles out of the hands of every citizen, notice how he got there. It is not because California has a 30-year policy infringing on the ownership of modern rifles, but because that policy has failed to reduce gun violence. According to judge Benitez the Supreme Court in the Heller decision, not the Constitution, has taken that choice out of the realm of state action. Based on this and the Heller opinions, should a state or the federal government impose an “assault weapons ban” and show evidence that gun violence was reduced, then that policy would be allowed to stand.

Even worse, this is the opinion of just one judge. This case has already been appealed to the Ninth Circuit Court of Appeals, not known for its deference to the language of the Constitution. Should the Ninth Circuit opinion be appealed to the Supreme Court there is no guarantee, or not even decent odds, that the court would accept it. In short, we have one judge’s opinion to protect the rights of the people of Southern California, a position based not on the Constitution of the United States, but on the opinion of the justices on the Supreme Court. As judge Benitez noted in his opinion:

Prior to 2008, lower court opinions did not acknowledge that the Second Amendment conferred an individual right to own firearms, or that the right applied against the states.

Miller v. Bonta Opinion

If courts were wrong prior to 2008, what is to keep them from being wrong in the future? By anchoring his opinion on the drifting tide of judicial opinion rather than the anchor of the language of the Constitution, judge Benitez has subjected it to the whims and waves of other judges. Even his constitutionally based arguments are full of qualifications.

There is only one policy enshrined in the Bill of Rights. Guns and ammunition in the hands of criminals, tyrants and terrorists are dangerous; guns in the hands of law- abiding responsible citizens are better. To give full life to the core right of self-defense, every law-abiding responsible individual citizen has a constitutionally protected right to keep and bear firearms commonly owned and kept for lawful purposes. In early America and today, the Second Amendment right of self-preservation permits a citizen to “‘repel force by forcewhen the intervention of society in his behalf, may be too late to prevent that injury.’” [Heller]. Then, as now, the Second Amendment may be considered as the true palladium of liberty.” (citation omitted). Unfortunately, governments tend to restrict the right of self-defense. [I]n most governments it has been the study of rulers to confine the right within the narrowest limits possible.” (citation omitted). Fortunately, no legislature has the constitutional authority to dictate to a good citizen that he or she may not acquire a modern and popular gun for self-defense.

Miller v. Bonta Opinion

Even while claiming that citizens have a constitutionally protected right to keep and bear arms, judge Benitez must place limitations not included in the Constitution of the United States. For this reason, judge Benitez’s words ring somewhat hollow. While noting that the right of self-preservation permits citizens to repel force by force, he limits that force to arms commonly held by civilians. Thereby, he leaves the law-abiding citizen woefully behind in an arms race against the very criminals, tyrants, and terrorists from which he says we need to protect ourselves. Even when claiming we have the right to use force to repel force, it appears he believes that’s only until the calvary of society rides over the hill. What is the law abiding citizen to do if that calvary does not come? Sadly, while judge Benitez claims that no legislature has the constitutional authority to dictate to a good citizen that he or she cannot acquire a modern rifle, he still qualifies it to those guns that are popular.

Judge Benitez finishes his conclusion with:

The Court does not lightly enjoin a state statute. However, while the Court is mindful that government has a legitimate interest in protecting the public from gun violence, it is equally mindful that the Constitution remains a shield from the tyranny of the majority. As Senator Edward Kennedy said, [t]he judiciary is – and is often the only – protector of individual rights that are at the heart of our democracy.” Law-abiding citizens are imbued with the unalienable right to keep and bear modern firearms.

Miller v. Bonta Opinion

I only wish judge Benitez, and all others judges, could both quote and apply the Constitution of the United States without the limitations of qualifiers. If the Constitution is a shield from the tyranny of the majority, why does judge Benitez claim the Second Amendment only applies to popular firearms? If he believes that Senator Kennedy was right, that the judiciary is the protector of individual rights, why does he leave them open to the judgment of justices rather than the consent of the people, as expressed by the Constitution of the United States?